Category: 2nd Amendment

It includes some criticism he’s gotten from Heller:

As it happens, it’s not only some Democrats who view Scalia as a constitutional hypocrite: many prominent independent and Republican judges and scholars have also criticized him for ignoring the original understanding of the Constitution in the cases he cares most passionately about. As Biskupic points out, Judge Richard Posner has derided Scalia’s constitutional history in the gun case as “faux originalism,” and Judge J. Harvie Wilkinson has compared Scalia’s gun opinion to Roe v. Wade for its refusal to defer to the political branches.

Posner’s knowledge of the scholarship that has surrounded the Second Amendment recently leaves much to be desired, and one wonders whether Harvie Wilkinson has read the Congressional briefs in Heller and McDonald, where a substantial majority of the “political branches” came down in favor of an individual rights view of the Second Amendment. Unless by “political branches” Judge Wilkinson means DC City Council, the City of New York and the City of Chicago? Maybe the reason Scalia hasn’t responded to these critics because their arguments are so shallow as to not be worth responding to?

I wouldn’t read a whole lot into the anti-Heller comments by Justice Ginsburg at a luncheon of the Harvard Club in Washington D.C. — a venue where Heller, no doubt, is not all that popular a decision. I guess I agree most with Orin Kerr on this one:

I don’t think a lunch speech at a restaurant for a college alumni group on the general topic of dissents — a topic she has talked about before — is the place to plant an idea in the public consciousness. Plus, I don’t think the public consciousness includes a view on overruling the Slaughterhouse cases.

If the report is accurate, though, it raises the possibility that the remaining dissenters in Heller may stick to their Heller dissent and conclude that the the right recognized in Heller doesn’t doesn’t apply to the states because Heller is wrong. In that case, the case presumably boils down to Kennedy and Sotomayor.

There’s been speculation that perhaps some of the dissenters in Heller would be willing to rule in favor of incorporation, Heller being a done deal and a lost argument. This would seem to indicate that might be a bit optimistic. If the dissenters are still in firm believe that Heller was wrongly decided, they are not going to agree to further entrench the decision.

This makes the work Dave Hardy, David Young, and others are doing a lot more important in discrediting the historical basis of the Stevens dissent, and works like Dave Kopel’s are important for discrediting any modern reliance.  A majority of Americans believe that the Second Amendment protects and individual right, and that right includes keeping a handgun in the home for self-defense.  That much should not be controversial.  We can argue over the rest of the details as they come up.

Yesterday I talked a bit about Richard Feldman’s LA Times editorial where he tries to bring he issue forward in terms we supposedly can all agree on. As I mentioned, we can all agree that we need to go after “the negligent misuse of guns”, but that the devil is in the details. Feldman’s essential thesis is correct, but not very useful in terms of moving the debate forward. While I don’t believe Richard Feldman is quite the turncoat on this issue as some of the other folks he’s associated with over the years, I still question how dedicated he is to the proposition of the Second Amendment protecting a fundamental right. Once you begin thinking in those terms, it’s difficult to believe there’s some magical middle ground out there that we can all work towards. Let’s take a look at even a relatively uncontroversial issue — that of background checks.

Both sides in this issue grudgingly accepted them back in the early 90s. The NRA grudgingly threw out the idea of instant background checks to avoid the HCI preferred method of a waiting period. Handgun Control Inc. obviously grudgingly accepted the instant background checks because they wanted a waiting period. We ended up with a compromise, but no side was really happy with the result. But if you’re really committed to the idea of the Second Amendment as a fundamental liberty, is our current background check system constitutional?

The Brady response would be an unequivocal yes. They will draw on the language in Heller that says, “nothing in our opinion should be taken to cast doubt on longstanding […] laws imposing conditions and qualifications on the commercial sale of arms.” Of course, the Brady will assert that this means any condition and qualification on the commercial sale of arms is constitutional, no matter how onerous. Brady would no doubt point out that it has a trivial effect on the right to bear arms, and is just a means for the government to ensure that they do not fall into the wrong hands, and that, even under strict scrutiny, is a compelling government interest. I think the Bradys will have quite a good argument on this, and I suspect the vast majority of Americans, most of whom will not understand the fine detail, will reflexively support the position, since background checks are instant, right?

Well, for most people, they are instant. But for some people, they go into a manual review process, where the Brady Act’s waiting period kicks in. There’s also the issue of the system being down, which has been known to happen, which also causes the Brady waiting period to kick in. After three days, dealers are permitted to transfer the gun with a default-proceed, but in practice most dealers won’t do this. For most of us, this is an inconvenience, but let me lay out a scenario for you.

A woman finally decides she’s had enough, and leaves her abusive boyfriend. The boyfriend, unable to let go, starts issuing threats against the the woman. He shows up at her house a few times, makes harassing calls, and generally doesn’t seem to get the message. Frustrated, she goes to the police and gets a restraining order. Knowing this doesn’t provide any real protection, she decides to go out and buy a gun, just in case the boyfriend shows up at her house again. She goes to the gun store, picks out a reasonable handgun, goes through the 4473 process, but the Instant Check system is down. The Brady waiting period kicks in. The dealer tells her to come back in a few hours, but it’s getting toward the end of the day, and the store closes in a few hours. The woman decides to come back the next day. But that night her boyfriend shows up at the house with a gun and murders her.

For all intents and purposes, that woman’s Second Amendment right never existed, because she was forced to wait on her purchase by a government regulation. Whether the government infringed on it through a waiting period or an outright ban, she was just as denied her right. Brady will no doubt argue that kind of thing often doesn’t happen, which I’m sure will be very comforting to this woman’s family. They will also no doubt argue that a gun wouldn’t have protected her anyway.

But for a real Second Amendment supporter, which Richard Feldman claims to be, one should realize this isn’t an easy answer. If there’s a middle ground somewhere in here that we can all live with, I’d certainly like him to point it out.

Dave Kopel recently did an interview with “Independent Thinking” out in Colorado to talk about his new book, Aiming for Liberty. He discusses whether anyone other than him has read all 12 of his books – 12! – and I realize what a terrible fangirl I am by not having read all of them. Perhaps more importantly, and relevant to the readers here, is how he debunks many myths of guns and crime while giving important context to the debate.

If you have another gunnie in the family who needs the perfect holiday gift, consider a couple of pro-gun books.

Rise of the Anti-Media: In-forming America’s Concealed Weapon Carry Movement by Brian Anse Patrick sounds interesting. I bit the bullet and bought it because Amazon has a great price on it – cheaper than the discount offered through the publisher. But, given that it’s published by a textbook house, it’s still a bit more than you may be expecting for one book. If you pre-order from Amazon, the price will not increase for you, and it could decrease. If it drops before it ships, you automatically get the lower price.

Aiming for Liberty: The Past, Present, And Future of Freedom and Self-Defense by my blogcrush Dave Kopel is also a great deal. If Sebastian doesn’t get back to finishing the book soon, I’ll be stealing his copy. The quotes Sebastian has been blogging have been great. It’s a great stocking stuffer. I see that Amazon is currently out of stock, but I suspect that it will be back in stock soon. And again, I don’t know how long they will have it marked down by about a third, so you might want to look at ordering now to reserve that price.

Dave Kopel has an excellent podcast that explains in some pretty good detail the issues that are at hand in McDonald vs. City of Chicago. It’s a good listen if you want to understand the case better.